concurring in Oliveros v. State, (Ga.), 47 S. E. 627, 630 comprehensively discoursed:
“---The bystanders may cry, “Hang him! Hang him!” as in Woolf oik’s Case (Ga.) 8 S. S. E. 724; and on motion therefor a mistrial might properly have been granted. The result would not have been different if a mob had invaded the court room with shouts of “Acquit him! Turn him loose!” In either case a mistrial is ordered because demanded by the ends of justice. The judge himself might feel called on to make such an order because of his own conduct, where he had inadvertently done an act which would vitiate the verdict. So, too, the misconduct of jurors, counsel, accused, or bystanders might likewise be such as to authorize a mistrial. Not that it was physically or morally impossible to proceed with the trial such as it is or would then be. It could go on as a physical fact, as it did in Woolfolk’s Case; but the verdict of acquittal or conviction would never be recognized as that calm and deliberate judgment of 12 men to which the accused was entitled, and to which, be it noted, the state was also entitled. A mistrial is not a necessary result of misconduct, but a cure made necessary by misconduct. It is not so much a necessary effect as a necessary remedy to prevent the effect. Of course if the occurrence is one calculated to harm the defendant alone, he may choose to waive it, and to have the trial proceed, and it would therefore usually be erroneous — as here — to order a mistrial over his objection. But if the conduct was such as to prejudice the state, or to prejudice both the accused and the state, it would be for the court to determine what action he should take under the peculiar facts. It is impossible to lay down a rule. It must be left to the sound legal discretion of the trial judge acting under his oath of office, and having due regard to the rights of the accused and of the state, and subject to re*443view as in all other cases. The principle is probably as accurately stated as it is possible to do in Thompson’s Case, 155 U. S. 271---where it was said: ‘Courts of justice are invested with authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated, and to order a trial by another jury; and a defendant is not thereby twice put in jeopardy, within the meaning of the fifth amendment of the Constitution of the United States’---.” (italics ours)
In the instant case the evidentiary plight which had evolved was prejudicial to the Respondent but not so to the State. The State sought no mistrial. The Respondent insisted upon waiving his right to a mistrial but was overruled by the court.
In Oliveros v. State, supra, 47 S. E. 627, 628 the Court further said:
“It would not do to hold that, whenever a judge comes to the conclusion that he has committed error in the trial of a criminal case he can declare a mistrial, and put the accused upon trial before another jury. No one could tell where such a ruling would lead. If the judge could do this in one trial, he could do it in the second or third, or even fourth. The law does not intend that one accused of crime shall be harassed in this way.”
A misapprehension in judicial administration is not of itself sufficient to warrant a mistrial and to nullify jeopardy.
In State v. Calendine, 8 Iowa, 288 the State was conducting its case against the accused and before a jury and 2 witnesses had been examined when the court upon its own motion dismissed the indictment and discharged the prisoner in the mistaken belief that the indictment was defective. On appeal it was held that the indictment had been *444valid and that the accused could not be tried again for the same offense. The opinion at Page 292 states :
“---Even the species of necessity supposed did not exist therefor, but the discharge arose from the will of the court.”
In State v. Wright, 5 Ind. 290, the presiding justice at a criminal trial erroneously believed that the court term had expired and that the trial must close. He dismissed the jury, ended, the trial and remanded the prisoner to jail for a new trial at the next court term. It was held on appeal that the trial court session could have continued until the conclusion of the trial, that there had been no necessity for withdrawing the case, that the respondent had been entitled to a verdict and that the proceeding was equivalent to an acquittal.
In State v. Witham, 93 Utah 557, 74 P. (2nd) 696, 698 is the statement:
“---but we all agree that a defendant ought in no case to be put on a second trial for the same offense where the jury has been discharged over defendant’s objection, because the court----may feel it has erred in prior rulings.”
In State v. Grayson, (Fla.), 90 So. (2nd) 710, 713:
“---The reason for requesting the mistrial according to the statement of the Assistant County Solicitor was that there might be error in the record. Out of fear of the ultimate effect of such error, the prosecuting officer requested the discharge of the jury. We do not consider this to be an urgent or necessary reason for granting the motion for mistrial, absent the consent of the accused. ---”
The testimony of the Reynolds brothers to the extent that it was inherently contradictory had bidden fair to neutralize itself in a large measure. Parenthetically one would opine that it had not enhanced the State’s case. But *445undebatably it had no justifiable presence in the trial. A rejection of it was obligatory together with its correlative and more prejudicial evidence consisting of the testimony and written exhibits of Pitt J. Smith as to Smith’s purchase of Ex. 1 through 26 from Sanborn and the testimony of Sheriff Heath concerning the acquisition from Smith of the same exhibits. Likewise those exhibits amongst Ex. 1 through 26 which had been described and denominated variantly from chattels recited in the indictment required some explanation to the jury as to the special and limited probative function of such particular exhibits. State v. Acheson, 91 Me. 240, 246.
The errant evidence was ascertainable without difficulty and was rationally separable. An emphatic and conventional direction to the sworn jury upon his own initiative by the Justice would have dependably disabused the jury who could and would have, without the necessity of exceptional forbearance, prescinded from the prejudicial and illicit evidence.
“While there are cases to be found in some jurisdictions holding that the erroneous admission of objectionable evidence is not cured by its withdrawal coupled with an instruction to the jury not to consider it, such cases are exceptional. The great weight of authorities is in support of the rule that ordinarily the erroneous admission of improper evidence is cured, or so far cured as to be no longer a sufficient ground for a new trial, by being withdrawn or struck from the record and an instruction given to the jury to disregard it entirely.” McCann v. Twitchell, 116 Me. 490, 493.
“___It is to be presumed the jury will follow the directions of the court. If it were not so, a witness might stop a cause in mid-trial, or it must proceed at the hazard of a new trial, and the court would be powerless to avert the evil by instructions, however pertinent and stringent. In the present case, if the jury gave heed to the court, and *446we must presume they did, no harm was done, even if the evidence was not contradictory; for they were told it was not to be weighed as proof of the prisoner’s guilt at all.”
State v. Kingsbury, 58 Me. 238, 242.
“---It must be presumed that such an instruction would have effaced all prejudice, if any, resulting from the statement---”
State v. Fortin, 106 Me. 382, 384. (See, also, State v. Norton, 151 Me. 178, 182.)
In the instant case as always the Respondent’s constitutional guaranty against double jeopardy was a security which had to be esteemed as amongst the last of his rights to succumb or yield to circumstances. For a presiding magistrate to direct spontaneously a mistrial against the objection of a respondent is to exercise an extraordinary power. Such may be done only in “urgent, manifest or imperious necessity.” State v. Slorah, supra. The Respondent here had found himself in a vexed predicament in the creation of which he had had no proximate part. The resultant harm had been to him alone. The State had not been without censure in the evidential evolvement at the trial. The Respondent had an empaneled jury with which he appeared satisfied. He had, too, the routine remedies for reversible error.
Under the controlling criminal statute the State had achieved doubtful success in demonstrating any felony. The Respondent had elected to waive his right to a mistrial and had affirmatively objected thereto. The court spontaneously overruled the Respondent from solicitude for the latter whom the court had despaired of otherwise extricating from a prejudicing involvement. The court most creditably pursued the only course which he at the time judged could provide a fair trial for the Respondent. The court had mistakenly assumed that the encores as witnesses of the Reynolds brothers had demonstrated that Ex. 1 through *44726 had all been improperly admitted. The court had desponded of eradicating the prejudice from the accepted evidence. Subjectively the court had been motivated by most admirable and laudable inducements. There was wanting, however, that
“---breakdown in the judicial machinery which renders further orderly and systematic procedure impracticable.”
State v. Witham, 74 P. (2nd) 696, 697.
We fail to perceive in the record the urgent, manifest or imperious necessity for the mistrial ordered.
The Respondent’s plea of former jeopardy is sustained.
Because of such conclusion it becomes unnecessary that this court consider further the remaining exceptions of the Respondent or his appeal.
Exception sustained.
Case remanded to the Superior Court for Respondent’s discharge.
State of Maine vs. John B. Sanborn